There are many situational factors that can occur at any given time in a criminal investigation that may initiate a wrongful conviction. When any number of undesirable actions occurs, not necessarily in any given sequence, the case goes off track.

Let’s begin at the point of time when any investigative agency adopts a criminal case. The investigation begins with the first awareness that a crime has been committed.

Now, the investigation “train” leaves the station and heads down the tracks building momentum. Anytime a potentially harmful situation occurs along the route, the safe progression of the train is jeopardized and disaster is eminent.

When the “train” leaves the track, it usually results in someone getting “railroaded”.

Here are some factors that can cause a disaster in an investigation.

1. Individuals lacking the necessary skills and experience, who are placed in a position of investigative authority, for any number of reasons, have a tendency to perform poorly and unprofessionally. This usually happens if those positions are appointed or filled when there is little or no competition of more capable candidates.

2. Due to inadequate skills, there is a tendency to fabricate, twist or manipulate known case facts and/or ignore them. There are several justifications that promote this type of behavior; the foremost one is to “look good”. Sometimes, the individual just does not possess the capabilities of a “troubleshooter” who uses the process of elimination.

3. Also, due to a lack of adequate training and/or inexperience, these investigators do not possess true objectivity for conducting investigations. There are many things that can interfere with objectivity; a standard that has to be constantly maintained.

4. There is a tendency to not ask for assistance from qualified and experienced investigators or other sources. A “rush to judgment” decision is prevalent under these conditions. This happens when the investigator does not want to “look bad” because of incompetency or arrogance and has a “know it all” attitude.

5. Once focused on a suspect, tunnel vision may prevail and actual facts that do not fit the desired scenario may be totally disregarded. Most often there is little credence given to any other possible suspects. Sometimes referred to as “blinded by the light” syndrome, the investigator refuses to acknowledge any other possibilities.

6. When confronted with inconsistencies and biased rationalization, justification enters into the reasoning process and pieces of the puzzle are forced into place where they do not fit.

7. When oversight and lack of professional accountability are not in place, a “fantasy” type scenario of the crime is created and perpetuated. Reports and statements become slanted against a suspect and the wording infers guilt rather than facts.

8. The peer pressure to obtain a conviction sometimes overcomes professional and moral standards. Administrative and/or public pressure quite often limits the time needed to explore all of the facts and possibly develop new evidence.

9. Tampering with case evidence, fabrication of facts and/or perjury can become common occurrences and continued from case to case. When a desired outcome is obtained, it becomes easier to continue this illegal behavior in other situations.

10. Offering actual case facts to the suspect provides the foundation for a false confession. Manipulation, trickery and fabrication of the case facts, when told to the suspect, provide the building blocks of a false confession. The result is a confession that will usually convince a jury of guilt.

11. Release of false and misleading statements to the media creates a “branding” effect that is extremely difficult to defend against. The most damaging result of this is pollution of the juror pool. The continued success of convictions utilizing this tactic makes this a valuable tool for the wrong reasons.

12. When the investigator(s) complete a flawed investigation, the case is turned over to the prosecution. Quite often, the same misdirection is maintained as they use their own set of justifications, or by not challenging the validity of the case.

13. The final outcome is usually a conviction by a jury or plea bargain and an innocent person is incarcerated while the actual perpetrator remains free to commit more crimes.

Thankfully, the majority of people working in criminal justice systems throughout the world strive to maintain the professional standards required to prevent wrongful convictions.

The National Registry of Exonerations is a joint project of the University of the Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law. It is an up to date list of all known exonerations in the United States since 1989.

The registry is available online and is described in this Associated Press article by reporter Pete Yost.

Study: 2,000 convicted then exonerated in 23 years

May 21, 2012 12:02 am • Associated Press

More than 2,000 people who were falsely convicted of serious crimes have been exonerated in the United States in the past 23 years, according to a new archive compiled at two universities.

There is no official record-keeping system for exonerations of convicted criminals in the country, so academics set one up. The new national registry, or database, painstakingly assembled by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, is the most complete list of exonerations ever compiled.

The database compiled and analyzed by the researchers contains information on 873 exonerations for which they have the most detailed evidence. The researchers are aware of nearly 1,200 other exonerations, for which they have less data.

They found that those 873 exonerated defendants spent a combined total of more than 10,000 years in prison, an average of more than 11 years each. Nine out of 10 of them are men and half are African-American.

Nearly half of the 873 exonerations were homicide cases, including 101 death sentences. Over one-third of the cases were sexual assaults.

DNA evidence led to exoneration in nearly one-third of the 416 homicides and in nearly two-thirds of the 305 sexual assaults.

Researchers estimate the total number of felony convictions in the United States is nearly a million a year.

The overall registry/list begins at the start of 1989. It gives an unprecedented view of the scope of the problem of wrongful convictions in the United States and the figure of more than 2,000 exonerations "is a good start," said Rob Warden, executive director of the Center on Wrongful Convictions.

"We know there are many more that we haven't found," added University of Michigan law professor Samuel Gross, the editor of the newly opened National Registry of Exonerations.

Counties such as San Bernardino in California and Bexar County in Texas are heavily populated, yet seemingly have no exonerations, a circumstance that the academics say cannot possibly be correct.

The registry excludes at least 1,170 additional defendants. Their convictions were thrown out starting in 1995 amid the periodic exposures of 13 major police scandals around the country. In all the cases, police officers fabricated crimes, usually by planting drugs or guns on innocent defendants.

Regarding the 1,170 additional defendants who were left out of the registry, "we have only sketchy information about most of these cases," the report said. "Some of these group exonerations are well known; most are comparatively obscure. We began to notice them by accident, as a byproduct of searches for individual cases."

In half of the 873 exonerations studied in detail, the most common factor leading to false convictions was perjured testimony or false accusations. Forty-three percent of the cases involved mistaken eyewitness identification, and 24 percent of the cases involved false or misleading forensic evidence.

In two out of three homicides, perjury or false accusation was the most common factor leading to false conviction. In four out of five sexual assaults, mistaken eyewitness identification was the leading cause of false conviction.

Seven percent of the exonerations were drug, white-collar and other nonviolent crimes, 5 percent were robberies and 5 percent were other types of violent crimes.

"It used to be that almost all the exonerations we knew about were murder and rape cases. We're finally beginning to see beyond that. This is a sea change," said Gross.

Exonerations often take place with no public fanfare and the 106-page report that coincides with the opening of the registry explains why.

On TV, an exoneration looks like a singular victory for a criminal defense attorney, "but there's usually someone to blame for the underlying tragedy, often more than one person, and the common culprits include defense lawyers as well as police officers, prosecutors and judges. In many cases, everybody involved has egg on their face," according to the report.

Despite a claim of wrongful conviction that was widely publicized last week, a Texas convict executed two decades ago is not in the database because he has not been officially exonerated. Carlos DeLuna was executed for the fatal stabbing of a Corpus Christi convenience store clerk. A team headed by a Columbia University law professor just published a 400-page report that contends DeLuna didn't kill the clerk, Wanda Jean Lopez.

Eric T. Schneiderman, the New York State attorney general, is creating a bureau to investigate criminal cases across the state in which convictions have been called into question.

The Conviction Review Bureau represents the first statewide initiative by a law enforcement agency to address potential wrongful convictions, at a time when many in the state’s criminal justice system, including the chief judge, have been calling for changes like the videotaping of police interrogations and the use of new practices for eyewitnesses’ identifications.

“There is only one person who wins when the wrong person is convicted of a crime: the real perpetrator, who remains free to commit more crimes,” Mr. Schneiderman said in a statement. “For victims, their families and any of us who could suffer the nightmare of being wrongly accused, it is imperative that we do everything possible to maximize accuracy, justice and reliability in our justice system.”

The bureau will consist of one current assistant attorney general, who will be able to call upon investigators and assistant attorneys general as needed. A panel of seven senior lawyers in the office will advise the bureau.

Mr. Schneiderman said his office would work with district attorneys across the state to identify cases in which there might be significant doubts surrounding a conviction. If a district attorney’s office chooses to refer the case to the attorney general, then the attorney general’s office will have jurisdiction to reinvestigate the case and handle the subsequent legal proceedings.

Though questions remain as to whether local prosecutors will be reluctant to cede jurisdiction to the bureau in highly controversial cases, Mr. Schneiderman’s office said it had already received support from several prosecutors, including Janet DiFiore of Westchester County, Kathleen B. Hogan of Warren County and Cyrus R. Vance Jr. of Manhattan.

The attorney general said he also planned a review of his own office’s investigative practices to ensure that it is following proper procedures.

The bureau will also decide how to resolve civil cases in which someone who was wrongfully imprisoned is seeking money from the state. Those cases are in the attorney general’s jurisdiction. The office has been criticized for its reluctance at times to compensate the wrongfully convicted without a lengthy, costly court proceeding.

In a ruling last year, the New York Court of Appeals, the state’s highest court, said that a former inmate named Douglas Warney could seek compensation for his wrongful conviction, though the attorney general’s office — first under Andrew M. Cuomo, and then under Mr. Schneiderman — had argued that Mr. Warney, while innocent, had brought about his own conviction by making a confession. DNA evidence cleared Mr. Warney of murder, and his lawyers said police officers had fed him details of the crime to manufacture a confession.

“The attorney general’s office is very defensive about paying out awards on behalf of New York State,” said Donald M. Thompson, a lawyer for Mr. Warney, who is still negotiating a financial settlement with the state. “Part of it is, it’s their job to be.”

Mr. Thompson said he hoped that New York would adopt the approach of other states in which a formula is used to determine how much money people are awarded once they are found to have been wrongfully convicted.

A subcommittee of the Conviction Review Bureau will assess the office’s practices on settlement negotiations case by case, said Danny Kanner, a spokesman for Mr. Schneiderman. By having a group that consistently reviews these civil cases, the office said, it hopes to make the settlement process quicker, more effective and more efficient.

A Virginia man sentenced to life in prison in 2001 savored his first night of freedom Wednesday after a federal judge overturned his murder conviction, and lambasted police and prosecutors for "outrageous misconduct" in the case.

In May 2000, police in rural Culpeper County, Va., charged Michael Wayne Hash, then 19, in the gruesome shooting death of an elderly neighbor four years earlier.

In a blistering 65-page opinion published Feb. 28, Senior U.S. District Court Judge James C. Turk slammed investigators and prosecutors in the county for a "series of lies and failures to disclose exculpatory evidence." Prosecutors withheld failed polygraph tests of two crucial prosecution witnesses, and did not disclose that another witness, a jailhouse informant, repeatedly lied on the stand.

The case represented a "miscarriage of justice" and an "extreme malfunction in the state criminal justice system," Turk wrote.

A special prosecutor appointed to handle the case has six months to decide whether to retry Hash, Turk said in his opinion. In the meantime, Hash will remain free, after a county judge released him Wednesday afternoon on a $10,000 unsecured bond.

Hash, 31, arrived at the courthouse in shackles wearing a striped prison uniform, and left in street clothes.

"Yesterday was a wonderful day," said his parents, Jeff and Pam Hash, in a statement Thursday to The Huffington Post. "We were able to take Michael home and have our first family dinner in almost 12 years.""Right now, we're looking forward to the day when Michael's name is finally cleared and this nightmare is behind us," they said.

Gary Close, the prosecutor who tried the case, abruptly resigned as the Culpeper County district attorney after the judge's opinion. In a resignation letter, he called his office an "ethical and fair institution."

"Culpeper should be proud of their work," he said.

Hash's attorneys declined to comment on the substance of the case until it is finally resolved. But legal experts said the behavior of prosecutors and police represented a gross abuse of authority.

"It's shocking," said Laurie Levenson, a law professor at Loyola Law School and an expert on wrongful convictions. "This one was the trifecta. You name the type of misconduct, it all happened here."

No physical evidence tied Hash to the 1996 murder, which stumped police for four years. In 2000, after the election of a new sheriff, investigators arrested Hash and two other teenagers, and charged them in the crime.

One of the young men, Eric Weakley agreed to plead guilty to a lesser charge in exchange for testimony implicating Hash as the shooter. But prosecutors did not disclose that deal to the defense or the jury, or reveal that Weakley had failed a polygraph test. Weakley, sentenced to six years in prison, later recanted his testimony.

Another witness, Alesia Shelton, Hash's cousin, testified that she heard him confess to the murder. Prosecutors did not reveal that she, too, failed a lie detector test.

"Shelton's test results showed that she was deceptive on every single question asked about her statement implicating Hash," the polygraph examiner who conducted the test said later in an affidavit. "Anybody that failed the examination to this extent wouldn't be a very credible witness in my opinion."

The final key witness in the case was a jailhouse informant, Paul Carter, who testified that Hash confessed to the murder while the two were housed on the same cellblock.

Prosecutors portrayed Hash's alleged confession as a lucky break in the case. Later evidence revealed that investigators deliberately moved Hash to a neighboring county jail with the intent of exposing him to Carter, a known informant.

The two prisoners spent a single night on the same cellblock, records showed.

Also concealed from the defense counsel and the court was a deal struck between the informant and prosecutors, who later intervened on his behalf to secure a lighter sentence. Based on his cooperation with the Hash case, Carter's 15-year sentence was reduced to time served and he was released.

In his closing argument at Hash's trial, Close, the prosecutor, denied that the informant would benefit from his testimony. "There's no deal with Mr. Carter," he said. "None whatsoever."

The jury convicted Hash in two hours.

NOTE: Erick Westervelt’s case can be considered the “Triple Trifecta”. NCJ has totaled the egregious conduct that took place in his case and it exceeds more than nine outright acts of misconduct on the part of the police and prosecution. Yet, to this day, there has not been any government agency interested in looking into these facts.

....in any form is an extremely serious problem. In the food industry, it can result in life threatening food poisoning. In the space exploration program, it can destroy a mission at a cost of millions of dollars. In the police interrogation room, it can alter the outcome of a case. WHAT?

Yes, contamination of an interrogation means that the interviewer has purposely or inadvertently revealed previously unknown case facts to the suspect. WHY?

This little known fact regarding the direction of a criminal case almost may seem like the police community's "dirty little secret". You never hear or read about its existence in the media. You never see it in any of the crime TV programs. It is almost like it doesn't exist. The problem is, that it definitely does and more often than it should.

The result of contamination in criminal cases that gets more attention is when a witness or a juror becomes "contaminated" by being influenced or bribed. This occurrence seems to be more dramatic than contamination in the interrogation room. So, then why don't we hear more about it? Because, the police are the cause of it. "No way", you say. Whatever the motivation or inexperience of the person(s) conducting the interrogation process is, it is a serious problem for law enforcement.

Many times it is subtle and overlooked in the course of the interrogation. Most times it is not known or realized unless there is an audio or video recording of an interview, which is reviewed later.

Regardless of how it occurs, the course of the case is drastically altered from that point on. It lends credibility to arranging the puzzle where the wrong pieces now seem to fit in place. It overshadows normal reasoning. It becomes wishful thinking. It is addictive to the point that circumstances become believable.

It becomes a "runaway train" scenario if it isn't kept in check. It can be stopped in its tracks if there is oversight by others working the case. However, when the oversight is nonexistent and the contamination of statements by a suspect produces a false confession, the outcome is as disastrous as an e-coli outbreak.

The big difference in the two is, the e-coli contamination gets investigated and the source is revealed. Whereas the confession contamination is not addressed and remains hidden.

Whether intentional or not, when contamination of a confession has occurred, another crime has been committed. It may not seem like a crime, but it is. Many people in the criminal justice system would prefer to call it a mistake and let it go unpunished. The newly formed crime then takes on a life of its own and sometimes becomes perpetuated by others who ignore it.

It is the sworn duty of all criminal justice appointees to acknowledge and immediately report any deviation or manipulation of facts during any phase of criminal cases.

Erick Westervelt was a victim of contamination during the lengthy police interrogation.

"He who passively accepts evil is as much involved in it as he who helps to perpetrate it. He who accepts evil without protesting against it is really cooperating with it."Martin Luther King, Jr.

How many times have we all uttered those words? What were the consequences that caused us to make that statement?

In some particular instances, it might have a catastrophic effect upon someone's life. It also might have a remorseful bearing on your life.

Here is one such case that illustrates the point further.

If you are not familiar with Philadelphia, Pennsylvania, you most likely never heard of a small residential district in north "Philly" by the name of Olney. You also most likely never heard of this case. However, there is also a little known event that took place there in Olney, Pennsylvania, that should have received a great deal of attention nationwide. An event that emphasizes what jurors should know before they decide someone's fate.

Defense lawyers say there was a reason Jose Alicea confessed to the Oct. 30, 2005, shooting death of 21-year-old Esroy George Rowe during a melee at their neighborhood cafe in Olney.

Alicea, then 19, with no prior record or contact with police and an IQ of 64 - six points below the traditional threshold for mental retardation - was brought in for questioning at 2 a.m. Nov. 1, 2005.

Five hours later, nervous and shaking, Alicea began making a statement implicating himself.

In what lawyers say could be a first crack in the Pennsylvania courts' reluctance to allow some types of expert psychological testimony, a state Superior Court panel ruled Monday that Alicea's lawyers could use an expert to explain to a jury why some people are especially vulnerable to being pressured into confessing to a crime they did not commit.

Writing for the majority of the three-judge panel, Judge Mary Jane Bowes said the testimony of Richard Leo, a nationally known expert on police interrogation and false confessions, would not infringe on the jury's ability to assess the credibility of Alicea's claim of a coerced confession.

"Even those jurors who are aware of police interrogation techniques, or believe that they are aware by watching media and television," wrote Bowes, "are unlikely to understand how these methods can lead to an innocent individual confessing."

Hugh Burns, chief of appeals for the Philadelphia District Attorney's Office, said his office would likely appeal the Superior Court ruling. The DA's office could ask the full Superior Court to reconsider the panel ruling or the state Supreme Court to take the case.

"I think this is an important matter," Burns said. "There is this tendency to tell jurors what they should believe."

Burns can easily find support in the brief dissent by Superior Court Judge Correale F. Stevens.

Quoting from an earlier state Supreme Court opinion, Stevens wrote that the state's high court has long restricted expert witnesses: "Expert testimony is only admissible where formation of an opinion on a subject requires knowledge, information or skill beyond that possessed by the ordinary juror."

Monday's decision will have little immediate impact. Because the ruling only affirms a pretrial ruling by Philadelphia Common Pleas Court Judge Benjamin Lerner, Alicea will stay in prison, without bail and awaiting trial, until the courts rule on the DA's appeal.

That could mean several more years behind bars for a man - legally innocent until proven guilty - already confined six years, largely because of pre-trial arguments on whether he can use an expert witness. Beyond his confession, the evidence against Alicea is equivocal: eyewitnesses who identified two others as the shooter.

Nor is the Superior Court's ruling precedential, or binding on other state trial courts.

Still, some experts say the Superior Court decision is significant because it is one of several incremental steps by Pennsylvania judges to ease restrictions on some expert testimony.

Marissa B. Bluestine, legal director of the Pennsylvania Innocence Project, founded two years ago at Temple University's Beasley School of Law, said she believes the exoneration through DNA of some people convicted of crimes - by confession, eyewitness identification, or other evidence - is making some judges more open to the use of experts in court.

Bluestine said one Pittsburgh judge has already permitted limited testimony by Richard Leo about coerced confession, a ruling not directly challenged by prosecutors.

Two other cases are pending before the state Supreme Court on the use of expert testimony about the reliability of eyewitness identification.

According to Bluestine, only Pennsylvania and Kansas do not allow some use of expert testimony about coerced confessions.

"Most courts [in other states] allow its use at the discretion of the trial judge and that's as it should be," Bluestine added. "It's not appropriate in all cases."

In Erick Westervelt's trial, the defense tried to educate the jury about false confessions, but the attempt was extremely ineffective due to the assistant district attorney's persistence in discrediting the expert psychologist, Dr. Allison Redlich.

How many past jurors have had later thoughts about what is now known about the occurrence of false confessions? We will never know."If they had only known!......"

Barry Beach sheds tears as he listens to terms of his release after serving 29 years behind bars.

HELENA, Mont. – On Dec. 7, a Montana judge released confessed murderer Barry Beach after ruling that new evidence in his case was "credible" and that he deserved a new trial.

Beach, 49, served 28 years of a 100-year prison sentence for the 1979 murder of high school classmate Kim Nees, a crime he confessed to but has since maintained he didn't commit.

Two days after Beach was freed, authorities in Illinois and New York dealt with two cases of confessions that defendants later said were coerced.

The question at the heart of each of these cases — and dozens like them across the country — is: "Why would someone confess to a crime they didn't commit?"

Until recently, the idea that someone would falsely admit to a murder or a rape that they didn't commit was considered preposterous, says former Washington, D.C., homicide detective Jim Trainum.

"I always ask people, 'Why would somebody ever confess to a crime they didn't do?' " Trainum says. "What is it we do in that interrogation room that convinces you that it is in your best interest to admit to something that could lead you to the death chamber?"

Trainum was a police officer for 27 years, 17 of them as a homicide detective. Now retired, Trainum serves as a consultant on cold cases and wrongful convictions where he specializes in false confessions.

He says he obtained his first false confession from a suspect just one year into his tenure as a homicide detective.

Trainum says he and his fellow investigators repeatedly ignored evidence that pointed away from the suspect who confessed.

"It's like you're on this speeding train going down the track and it's extremely difficult to get that train to stop," Trainum says. "While you're on that train, you might be getting other leads coming in, other clues about the killer, but because we're so fixated on the suspect, often times those clues go undocumented."

Steven Drizin, a clinical law professor at Northwestern University School of Law and the legal director of the Center on Wrongful Convictions, studied more than 250 cases of proven false confessions. Nearly all false confessions start with the "misclassification error," Drizin says.

"When the police officer enters the interrogation room, they've already presumed that the suspect is guilty based on evidence that has been gathered in the course of the investigation. Often times, it's based on little more than a hunch," Drizin says.

The next error investigators often make is what Drizin calls the "coercion error." It starts when an interrogator begins accusing the suspect of committing the crime.

"Where these interrogations often go awry is when police begin to make implied or direct threats," Drizin says. "They might tell the suspect that a confession will bring leniency or less time in prison. Sometimes they tell a suspect that a conviction is going to bring an extremely harsh consequence, such as the death penalty, or long sentences. Sometimes suspects are told they're going to get raped in prison."

Trainum says police investigators are trained to convince a suspect that the short-term benefit of a confession outweighs the long-term consequences that it might bring.

The third error interrogators often commit, Drizin says, is when interrogators knowingly or unknowingly provide the suspect with key details of the crime.

University of Virginia law professor Brandon Garrett, author of the 2011 book Convicting the Innocent, reviewed 250 cases of people who were exonerated by DNA evidence.

Garrett found that suspects confessed in detail to crimes they didn't commit in 40 of those cases.

None of the interrogations in those cases was recorded in its entirety, Garrett says.

"In cases where the entire interrogation is recorded, it is a lot easier to find out" if interrogators have provided suspects with key details of the crime, Garrett says.

According to Garrett's study, all but two of the 40 false confessions involved such disclosures.

While police and prosecutors told courts and juries that the suspects provided details that only the actual criminal would know, Garrett found that the police investigators divulged those details during the interrogation process.

All three experts agree that false confessions start with improper training. It is not a police or prosecutorial misconduct problem, they say.

"That's what makes these cases so terrifying," Garrett says. "These people are innocent, and yet the cases against them appear to be very strong because what happened in the interrogation room was not documented."

Drizin, Garrett and Trainum say that complete video recordings of police interrogations would help reduce or eliminate wrongful convictions based on false confessions.

"The last thing most law enforcement officers want to do is put an innocent person behind bars," Drizin said.

NOTE: NCJ is attracting attention to this USA Today article in order to promote public awareness to this long time, ongoing fault in our criminal justice system. Even though there is more realization of the problem by police, prosecutors and judges, the public (potential jurors) is the group that really needs to be educated as to how false confessions are produced.

New York State's highest court, the Court of Appeals, has upheld Christopher Porco's conviction for murdering his father, Peter and seriously injuring his mother, Joan.

She testified at his trial (in his defense) that she had no recollection of remembering the crime or acknowledging to detectives that Chris was responsible. Expert medical evidence was presented to support her testimony and because of the extent of her brain damage, she would not have been able to consciously respond to any questions at the time. She apparently nodded her head indicating "yes" when asked if Chris had inflicted the wounds.

Porco's attorney wanted a ruling that would have declared a detective's testimony as unconstitutional. The attorney claims that the detective violated Porco's Sixth Amendment rights when he testified that Joan Porco indicated to him that Chris was the attacker.

The high court denied the appeal for a new trial by stating that in spite of the mother's incriminating response, it was deemed "harmless" to the jury and there was overwhelming evidence in the case that confirmed Porco's guilt.

As in Porco's case, the Westervelt case was appealed and also turned down at the lower Appellate Court level. However, because of the questionable allowed testimony of his mother's "head nod", Porco was allowed to appeal to the next highest Court of Appeals. Further appeals for Porco were indicated by his attorney. However, now they will have to be presented in the Federal Court System.

As reported in numerous earlier blog entries, the same police personnel, prosecutors and defense attorneys all participated in the Erick Westervelt case during the same time period.

The big difference between the cases is that there was absolutely no evidence that either placed Erick at the crime scene or connected him to it.

While searching back through the newspaper archives for a particular item, we came across some interesting articles pertaining to the Westervelt and Porco cases. Four years ago this week, Jarrett Carroll, an investigative reporter with the Altamont Enterprise posted two articles. Out of all the news accounts, NCJ regards this newspaper as producing the most accurate, in depth accounts of what took place in these two cases.

The "Enterprise" is a small Albany County newspaper that apparently has much more integrity than the large media sources.

..... or is this wishful thinking! Many opinions have been offered through the years with regards to criminal justice reform and the miscarriage of justice. This attached article pertains to a relatively unknown Act within the federal system, which in turn has a direct bearing upon the states. The authors point out the flaws in the administration of the habeas corpus statutes that have been adopted from the U.S. Constitution. The consensus of these three Cornell Law School professors is that the current federal relief for a wrongfully convicted person has been severely marginalized and subsequently rendered ineffective.

Fifteen years ago last month, President Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA), which made substantial changes to federal habeas corpus law. Despite his assurance that "federal courts will interpret these provisions to preserve independent review of federal legal claims," we have witnessed the evisceration of habeas in the intervening years, making justice substantially more difficult to obtain for those wrongfully convicted in state courts. Unfortunately, we are now hearing calls for more radical restrictions of habeas in a wrong-headed bid to address budget concerns.

Habeas corpus, expressly guaranteed by our Constitution, serves the criminal justice system as a final check to ensure justice has truly been served. Literally translated as "that you have the body," a habeas corpus challenge enables an individual held in the government's custody to challenge the legality of the detention.

The AEDPA's provisions have stymied federal courts by placing overly restrictive limits on a person's ability to have the merits of his or her case heard. Petitioners are barred by time limits that run too quickly, are overly complex and can be difficult to calculate, even for seasoned attorneys. Even more damning, the law prohibits federal courts from remedying miscarriages of justice; they are powerless to correct many of the state courts' misinterpretations of U.S. constitutional or federal law.

The net result is that the AEDPA has effectively closed federal courtrooms to prisoners with legitimate claims. This closing is all the more troubling given the failure of states to provide adequate counsel and meaningful post-conviction review in their own systems. Many states do not appoint counsel for post-conviction review, no matter how serious the prisoner's allegations or how incapable he or she is of presenting these complex and technical claims. Other states provide wholly inadequate compensation to counsel, resulting in the appointment of lawyers with little experience or incentive to commit the time necessary to fully develop their client's case. These and other hurdles make clear that the wrongfully convicted can often only find justice through federal habeas.

Despite the wrongfully convicted who are languishing in prison because of the AEDPA's failures, there are those who would use the current budget debate to call for further restrictions on habeas petitions. Under these proposals, habeas would be available only in capital cases and those cases in which new evidence of innocence has been found. These are misguided and costly proposals. Habeas is absolutely essential to correcting wrongful convictions, and with no alternatives, habeas filers who today would make constitutional claims would instead have to make innocence claims, which could result in far more lengthy, fact-intensive litigation.

As we reflect on the anniversary of the AEDPA and consider the injustices it has wrought, there are reforms that state and federal lawmakers could adopt to effectively reduce the need for habeas review and increase the likelihood that meritorious habeas petitions receive a full and fair hearing. First and foremost, providing effective, adequately resourced counsel for indigent defendants in the trial and appellate phases is the best chance the criminal justice system has of getting it right the first time. Passionate attorneys with the resources to investigate their clients' cases will be able to address potential problems that arise during trial. Since many habeas claims are related to ineffective assistance of counsel, this is a critical reform. Prisoners should also be appointed competent counsel for post-conviction review. Evidence shows that when petitioners are given counsel to guide them through the labyrinth of post-conviction review — as they are in capital cases — win rates go up.

Although adequate counsel will significantly reduce the need for federal review, errors will still occur in state proceedings. Congress should allow federal courts to perform robust, substantive review of habeas petitions, with the authority to correct state court holdings that erroneously apply U.S. constitutional and federal law. Beyond these proposals, there are numerous other reforms Congress can adopt to improve habeas.

Post-conviction review in the federal courts may cost some money, but certainly for the wrongfully convicted — indeed for all Americans wary of an overreaching government — the constitutional right to challenge one's detention is priceless. Congress must reform the AEDPA to restore this right to the hallowed position our founding fathers intended.

John Blume, Sheri Johnson and Keir Weyble are professors at Cornell Law School.

"He who passively accepts evil is as much involved in it as he who helps to perpetrate it. He who accepts evil without protesting against it is really cooperating with it." (Martin Luther King, Jr.)................................................................An injustice occurs when a crime is not fully investigated (Jon Richard)..............................................................................“That it is better 100 guilty persons should escape than that one innocent person should suffer, is a maxim that has been long and generally approved.” (Benjamin Franklin)..................................................“Don't ever tell anybody anything. If you do, you start missing everybody.” (J.D. Salinger).................... - Page Generated in 0.2131 seconds